Deprivation of liberty safeguards (DoLs), and legislation are in place to protect residents from situations where they are deprived of their human right to liberty. This legislation ought to be used to guide care staff to ensure they are not breaking the law and depriving someone of their human rights, inadvertently or otherwise.

In any care home environment, if a resident is under constant care and supervision, this is considered the resident being deprived of their liberty (DoL).

Anything that physically restrains the resident or confines them to one place or area is classed as a DoL. This can include a locked door preventing residents from leaving a room, or a lap belt on a wheelchair.

Mental Capacity Assessment

Some residents living with dementia could be unsafe if they were to leave the care home independently. In this instance staff may need to ensure they do not do so, in order to keep them safe.

However, the resident’s mental capacity must first be assessed to ensure this is not a deprivation of liberty. A DoLs referral can be provided by a DoLs assessor. This grants a deprivation of liberty safeguard. This allows care staff to make the decision to return residents to the home in the case they attempt to leave the building unsupervised, as they have been determined not to have the capacity to make this decision alone.

This applies to all residents living with a mental illness, dementia, or a disease which leads care staff to feel the individual may lack the mental capacity to make certain decisions.

Variable Capacity

Mental capacity is not a constant and it can fluctuate depending on the resident’s current situation.

If the resident has a urine infection they may lack capacity at that particular time. In which case if a decision needs to be made but can wait, the correct course of action would be to wait until the resident finishes treatment and regains capacity to then make their own decision.

This resident may need an urgent DoL if they are found to lack capacity during this time, but once treatment has finished it can be removed if capacity is regained.

Another example of variable capacity is in residents living with dementia. Some individuals may have the capacity for some things and not others, depending on the decision at hand. They may be completely capable of decisions regarding what they would like to eat and drink, but may lack the capacity to make a sound decision regarding no longer being safe at home and needing to move into a care home.

Essentially, the priority is that people are cared for in the least restrictive way possible, taking into account what they would have chosen themselves if they could have done.

For example, if a resident is moving into a care home you would select the care home that takes into account their best interests. If Mrs S has lived in a particular town all her life, used to volunteer in a particular care home, and always stated she would go there if she had to go into a care home, these would all be used as justifications. This option would then be considered in the best interests of Mrs S, as opposed to playing her in a care home 200 miles from her family, simply because a bed was available. 

Care Quality Commission

DoL and the CQC

As stated previously, a DoLs referral is essential in the case where care staff wish to be legally able to make decisions on behalf of a resident who lacks this capacity.

However in reality there is a backlog of cases for DoL assessors to review, and care homes may be required to wait some time to receive necessary authorisation.

If you are caring for people and feel that you may be depriving them of their liberty, the best course of action is to make a referral to the DoL assessors, and keep this on file to show the CQC as required.

All granted Deprivation of Liberty authorisations must be reported to the CQC as a standard notification.